EB5 Investors Magazine English Edition Volume 6, Issue 2 | Page 106

10-year visa because that is State’s internal policy. But that policy does not apply to E-2 visas. Consular Officers can and do approve visas for less than the full 5-year E-2 reciprocity period when they harbor doubts as to the commitment of the applicant or the progression of the business plan. Practitioners should therefore not assume that their clients will always receive a full validity visa, regardless of the nationality, reciprocity must be considered, and advice should be tailored accordingly. THE E-2 IS NOT A DUAL-INTENT VISA – BEWARE §214(B) Investors should be reminded of the dangers of denial under INA §214(b) - the provision that requires a non- immigrant visa applicant to prove to the Consular Officer that he or she is not an intending immigrant. §214(b) has not been much of a problem for E-2 applicants, because 9 FAM 402.9-4(C) says that an “alien’s expression of an unequivocal intent to depart the United States at the end of his/her authorized stay” is enough to overcome the burden of proof. However, the FAM does not go so far as to instruct the Consular Officer to accept dual intent. In fact, 9 FAM 402.9-4(C)’s closing sentence says, “An applicant who is the beneficiary of an immigrant visa petition will need to satisfy you that his/her intent is to depart the United States at the end of his/her authorized stay, and not stay in the United States to adjust status or otherwise remain in the United States.” E-2 visa. The E-2 visa is probably best for those investors that have a legitimate interest in running their own business in the US – the direct investment type investor. The typical Regional Center investor looking first for a vehicle to emigrate to the United States through a passive investment is probably not the best candidate for E-2, and practitioners should take care not to unduly encourage them. Torpor in the EB-5 world is no reason for bad E-2 advice. Stephen P. Pazan , esquire, is an attorney working as a consultant to Baker Tilly Capital, LLC on EB-5 source of funds and other issues. Pazan was a consular officer with the U.S. Department of State in Colombia, Kiev and Warsaw, and an EB-5 adjudicator for the USCIS before leaving government in March 2018. He is also special counsel to the New York law firm Barket Epstein Kearon Aldea & LoTurco, LLP. Sources: 1 See info, Challenging the Doctrine of Consular Non-Reviewability in Immigration Cases, Donald S. Dobkin, November 2009, https://law.yale.edu/system/files/area/conference/ilroundtable/ILR13_ DIDonaldDobkinChallengingtheDoctrine.pdf “[W]ill need to satisfy you…” is not an objective standard. As stated earlier, Consular Officers have a great deal of discretion. While there are limited rights of supervisory review, the circumstances where Consular Officers are directed to reverse their decisions are rare. In fact, the FAM is predisposed against it, and imposes administrative burdens on supervisors who might wish to do so. If prospective EB-5 applicants are directed in increasing numbers to the E-2, it is likely that Consular Officers will notice it and become increasingly demanding. The intent to depart required for in E-2, or even a B1/B2 visa, is inconsistent with the pendency of an I-526, but the B1/B2 application is more likely to get the benefit of doubt. After all, the E2/I-526 combination is more-or-less an affirmative statement of intent to reside in the United States. A Consular Officer’s determination as to immigrant intent is never appealable, and once a §214(b) finding is lodged in the Consular Consolidated Database (CCD), it can become problematic. A §214(b) denial can result in all kinds of problems, such as rescission of dependents’ F-1 student visas or the denial of B1/B2 visas. 1 To conclude, migration professionals should properly advise investors regarding the challenges posed by the E-2 process. The considerations discussed here are a recommendation that the industry slow down regarding the 106 EB5 INVESTORS M AGAZINE Rodrigo and his law firm have vast experience representing EB-5 investors with the preparation and submission of permanent resident applications. We work with investors applying either through direct EB-5 investments as well as through Regional Center applications. Rodrigo and his team have vast experience with other types of U.S. non-immigrant and immigrant visa applications. www.rdasilvalaw.com RODRIGO AND HIS TEAM ARE FLUENT IN ENGLISH, SPANISTH, AND PORTUGUESE. TEL: (305) 615 1434 FAX: (305) 615 1435 EMAIL: RODRIGO @ RDASILVALAW.COM 777 41ST STREET, SUITE 402 MIAMI BEACH, FLORIDA 33140